FOR THE FOURTH CIRCUIT

                            No. 13-4039


                Plaintiff - Appellee,



                Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:12-cr-00249-TDS-1)

Argued:   March 20, 2014                  Decided:   June 6, 2014

Before NIEMEYER and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by published opinion. Senior Judge Hamilton wrote the
opinion, in which Judge Niemeyer and Judge Diaz joined.

ARGUED: Charles LeRoy White, II, Greensboro, North Carolina, for
Appellant.    Todd Alan Ellinwood, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Ripley Rand,
United States Attorney, Clifton T. Barrett, Assistant United
Greensboro, North Carolina, for Appellee.
HAMILTON, Senior Circuit Judge:

      On appeal, Arthur Weiss (Weiss) challenges his 185-month

sentence, following his plea of guilty to one count of wire

fraud, 18 U.S.C. § 1343, one count of money laundering, id. §

1957, one      count    of     making     a     false     statement      on     a     loan

application to a financial institution, the accounts of which

are insured by the Federal Deposit Insurance Corporation (FDIC),

id.   § 1014,    and    one    count    of     corrupt    interference        with    the

internal      revenue     laws    of     the       United      States,    26 U.S.C.
 § 7212(a).    We affirm.


      The following facts either underlie the counts to which

Weiss pled guilty or constitute relevant conduct for sentencing


      From sometime in 2003 until mid-2012, Arthur Weiss (Weiss)

owned and operated several professional employer organizations

in North Carolina.            A professional employer organization (PEO)

provides human resource functions, including payroll processing,

for companies through employee leasing agreements.                       Under North

Carolina law, PEOs are required to be licensed and regulated by

the   North    Carolina      Department       of   Insurance.       North      Carolina

Professional      Employer       Organization           Act,    N.C.     Gen.        Stat.

§§ 58-89A-1 to 180.

                                        - 2 -
     During this time frame, Weiss falsely held himself out as a

Certified Public Accountant by using the initials “CPA” on his

letterhead,     on     his    business    cards,       and   in     his     email    address

(            The record also contains evidence that

Weiss provided a brochure to a potential client, whom he later

acquired as an actual client, outlining the services offered by

his PEO named Employee Alternatives, LLC (EA), including payroll

processing,      tax    services,       and     securing      workers’       compensation

insurance.       The     EA    brochure       stated    that      “[w]e     deposit    your

payroll      taxes,     file     payroll       tax     returns       and     assume    full

responsibility         for     the    accuracy       and      timeliness        of    those

processes.”          (J.A.     244)   (internal        quotation       marks    omitted).

Other   EA    services       included    preparation and filing of                  Internal

Revenue      Service    (IRS)    Form 941        (Employer’s         Quarterly       Federal

Income Tax Return) and making deposits for federal unemployment

insurance.      In the EA brochure, Weiss listed himself as a CTA,

which   can    stand     for    either        “‘Certified      Tax     Accountant’”       or

“‘Chartered Tax Advisor,” and listed himself as an ATA, which

stands for “‘Accredited Tax Advisor.’”                  Id.

     Through      his    various        PEO    entities,       at    least     twenty-two

companies      hired    Weiss.        Weiss       collected         funds    from     client

companies to pay the wages of the companies’ respective leased

employees along with a fee for the payroll services.                           Weiss then

deposited such funds into bank accounts he controlled.                                 Weiss

                                          - 3 -
then     instructed        third-party        payroll        companies      to     actually

calculate        the      applicable        state      and     federal       income        tax

withholdings.          The third-party payroll companies either paid the

employees their net income directly or advised Weiss of the net

amounts due; thereafter Weiss would disburse the net paycheck

funds to the employees.              On many occasions, Weiss failed to pay

the    state     and      federal    withholdings          deposited      with     his    PEO

entities       to   the     IRS     and     relevant       state     revenue     agencies,

converting such funds to his own use.

       Weiss also collected funds from his client companies to

secure     workers’         compensation        insurance           for    their     leased

employees, but failed to secure the level of coverage for which

he collected premiums.              He converted the excess premium payments

to his own use.

       Weiss stipulated for sentencing purposes that the losses

attributable        to    him     totaled    $4,132,044.16          in    unpaid    federal

employment taxes, $260,839.00 in unpaid state employment taxes,

and    $559,663.02         in     unpaid     workers’        compensation        insurance


       Another Weiss scam involved a bank insured by the FDIC.

Over time, Weiss established a close banking relationship with

Branch    Bank      and    Trust    (BB&T).         From     2002   until    2008,       Weiss

submitted false federal income tax returns to BB&T reflecting

higher income figures for himself than he had actually reported

                                            - 4 -
to the IRS.         In reliance upon these misrepresentations, between

2004   and    2008,    BB&T       approved      four       loans       to    Weiss,      totaling

$2,266,500.00, for the purchase of a lot and construction of a

home in Marion, North Carolina.                      The home securing such loans

subsequently sold in bankruptcy proceedings for $1,350,000.00.

       Weiss failed to report any of his illegally obtained income

to the IRS.         He stipulated that the illegal income he should

have declared on his federal income tax returns resulted in him

underpaying         personal         income          taxes        in        the     amount       of


       Weiss used a portion of the proceeds from his employment

tax scheme to purchase expensive jewelry.                              Between May 3, 2008

and    May   11,    2008,        Weiss   and    his     wife      traveled          to   Romania.

During the trip, Weiss falsely reported to his insurance carrier

that   four    pieces       of    jewelry      with    a     total      purchase         price   of

$129,900.00 were lost or stolen.                       He subsequently received a

check, via the United States Postal Service, from his insurance

carrier,      for     the        appraised      value        of    such           jewelry--i.e.,

$177,480.00.         Law enforcement authorities subsequently located

the same four items of jewelry in Weiss’ home.


       The    presentence          report      (PSR)       calculated             Weiss’     total

offense level under the United States Sentencing Guidelines (the

                                            - 5 -
Guidelines or USSG) at 33 and his criminal history category at

III, resulting in an advisory sentencing range of 168 to 210

months’ imprisonment.           Of relevance on appeal, the total offense

level    of    33    included    a   2-level    enhancement      for    abuse      of   a

position      of    trust,   pursuant   to     USSG   § 3B1.3,    to    which      Weiss

objected.      The district court overruled his objection.

      Also of relevance on appeal, the total offense level of 33

set forth in the PSR included 20 levels for a loss of more than

$7,000,000.00,         but    less    than      $20,000,000.00.              See   USSG

§ 2B1.1(b)(1)(K).            Weiss objected to application of this loss

range, contending that he is only accountable for $6,050,000.00

in losses, thus placing him in the loss range of more than

$2,500,000.00, but less than $7,000,000.00.                      This loss range

results in an 18 level increase in his offense level as opposed

to 20.      See USSG § 2B1.1(b)(1)(J).           The district court overruled

this objection also.            The district court found the total amount

of   loss     attributable      to   Weiss’    offense   conduct       and    relevant

conduct to be $7,140,339.18.

      Ultimately, the district court determined Weiss’ advisory

sentencing range under the Guidelines to be 168 to 210 months’

imprisonment, and sentenced him to 185 months’ imprisonment.

      On appeal, Weiss challenges the procedural reasonableness

of his sentence on the basis that the district court erred:                         (1)

by increasing his offense level under the Guidelines by 2 levels

                                        - 6 -
pursuant USSG § 3B1.3 for abuse of a position of trust; (2) by

increasing his offense level under the Guidelines by 20 levels

pursuant to USSG § 2B1.1(b)(1)(K), instead of by only 18 levels

pursuant to USSG § 2B1.1(b)(1)(J); and (3) by failing sua sponte

to     appoint     various       experts    to       assist     in       his    defense     at

sentencing.        We address each of these assignments of error in



       USSG    § 3B1.3     provides      for     a    2-level       enhancement      in   the

defendant’s offense level if the defendant “abused a position of

public or private trust . . . in a manner that significantly

facilitated        the   commission        or        concealment         of    the   offense

. . . .”      USSG § 3B1.3.         The applicable commentary identifies a

position of trust as a role “characterized by professional or

managerial discretion (i.e., substantial discretionary judgment

that    is    ordinarily     given       considerable         deference).”           USSG   §

3B1.3,    comment.       (n.1).      The       abuse-of-trust         enhancement         also

applies       to   imposters,       so     long        as     the    imposter-defendant

“provides sufficient indicia to the victim that the defendant

legitimately       holds     a   position       of     private      or    public     trust.”

United States v. Brack, 
651 F.3d 388
, 392-93 (4th Cir. 2011)

(internal quotation marks omitted).                         “This is so because [i]n

making the misrepresentation, the defendant assumes a position

                                           - 7 -
of trust, relative to the victim, that provides the defendant

with the same opportunity to commit a difficult-to-detect crime

that    the    defendant    would       have        had   if     the    position        were

legitimately      held.”         Id.    at    393     (internal        quotation       marks


       Three factors guide the               sentencing        court    in    determining

whether a person held a position of public or private trust for

purposes of applying the USSG § 3B1.3 enhancement:                            (1) whether

the defendant had special duties or access to information not

available to other employees; (2) the extent of the defendant’s

discretion; and (3) whether the defendant’s acts indicate that

he is more culpable than similarly situated actors.                              Id.     The

commentary to USSG § 3B1.3 also provides specific examples of

when the      defendant’s    abuse      of    a     position     of    trust    justifies

application of the enhancement:                “an embezzlement of a client’s

funds by an attorney serving as a guardian, a bank executive’s

fraudulent      loan   scheme,     or    the      criminal      sexual        abuse    of   a

patient by a physician under the guise of an examination.”                              USSG

§ 3B1.3,      comment.   (n.1).         In    contrast,        the     same    commentary

provides that the “adjustment does not apply in the case of an

embezzlement or theft by an ordinary bank teller or hotel clerk

because    such   positions       are    not      characterized         by    the     above-

described factors.”        Id.

                                         - 8 -
       Here, in concluding Weiss should receive a USSG § 3B1.3

enhancement for abuse of a position of trust, the district court

found the following facts:                 (1) Weiss held himself out to be a

CPA; (2) CPAs have substantial discretionary judgment in making

determinations       as    to     how     to    properly       engage    in      the    various

computations and decisions necessary to properly account for and

pay the various payroll taxes at issue in the present case and

most persons would regard CPAs to be regulated by the state; (3)

Weiss’ holding himself out as a CPA significantly facilitated

his fraud scheme by “g[iving] him certain credential with people

in    business     who    would      be   willing      to      give   him     such     type    of

business     and    have       him   provide       the    services       that     one    would

imagine that a [CPA] would faithfully and properly provide”; and

(4)    Weiss’      holding        himself        out      as    a     CPA     significantly

facilitated the commission and concealment of his fraud scheme

by    allowing     him    to     manage        payroll    functions,        including         the

payment     of   state     and    federal        tax   withholdings         to    the   proper

government agencies, “without any oversight.”                         (J.A. 154).

       We   review       the   factual         findings     underlying        the      district

court’s USSG § 3B1.3 enhancement for clear error.                             United States

v. Dawkins, 
202 F.3d 711
, 714 (4th Cir. 2000).                          To the extent the

district court undertook a legal interpretation of USSG § 3B1.3,

our review is de novo.               United States v. Gormley, 
201 F.3d 290

296 (4th Cir. 2000).

                                           - 9 -
     On appeal, Weiss concedes the government presented evidence

at sentencing that he used the CPA designation in many of his

business documents and on his business cards, and thus, “it may

be reasonable to infer that he held himself out as a CPA to at

least    some   of   the    victims.”         (Weiss’    Opening    Br.   at   9).

However,    Weiss    contends      that   a   USSG    § 3B1.3   enhancement     is

inapplicable in his case because “there was no evidence adduced

in any form that his false representation of himself as a CPA

induced any of these victims to do business with him or caused

them to repose a higher level of trust or confidence in him

whatsoever.”      Id.      In Weiss’ view, he merely provided payroll

and insurance agent services to his victim corporations and did

not act as their CPAs.

     In support of his position, Weiss primarily relies upon our

decision in United States v. Caplinger, 
339 F.3d 226
 (4th Cir.

2003).     The defendant in Caplinger misrepresented himself as an

accomplished physician in his efforts to attract investors in

his fraudulent schemes involving production of a fake wonder

drug used to treat HIV/AIDS.          Id. at 229-30.        In determining the

defendant’s     offense    level    under     the    Guidelines,   the    district

court assessed a 2-level enhancement pursuant to USSG § 3B1.3

for abuse of a position of trust.               Id. at 235.        The defendant

challenged the enhancement on appeal.

                                     - 10 -
       On appeal, we framed the issue as “whether Caplinger, by

posing    as   an     accomplished             physician    in     order       to    influence

potential investors, abused a position of trust with respect to

the victims of his fraud scheme within the meaning of” USSG

§ 3B1.3.       Id.       at   236.        In    answering        this    question       in    the

negative, we reasoned that while the false information about the

defendant’s     credentials           and      experience    assisted       in       convincing

investors      and       in    making       them    more     confident          about        their

investment, any trust the investors placed in the defendant was

not   based    on    a    special      relationship         he    had    with       them     as   a

physician,          but       on      their        misplaced            belief        in       the

misrepresentations            about    his      credentials       and    the     fake      wonder

drug’s potential for success.                      Id. at 237.           As a result, we

vacated the defendant’s sentence and remanded for resentencing

without the USSG § 3B1.3 enhancement.                   Id. at 238.

       Weiss    contends           that      the    argument        for     applying           the

enhancement in Caplinger is stronger than in his case because

the sentencing court in Caplinger found that the defendant’s

misrepresentations            induced        the    victims        to     invest        in     his

fraudulent scheme, while in Weiss’ case, the record contains no

evidence that falsely holding himself out as a CPA induced any

victim to participate in any of his schemes in any way.

       The government distinguishes Caplinger on the basis that,

in    Caplinger,      the      defendant         participated       in     an       arms-length

                                             - 11 -
transaction with each of his victims as opposed to entering into

a fiduciary or personal trust relationship with his victims as

Weiss did.

       The    primary          case    upon    which      the    government        relies    in

support      of    its    position      is     Brack.       In    Brack,     the    defendant

Tiffanie      Brack       (Brack)      posed    as    a   bail    bondsman     at    a     North

Carolina jail in order to secure identifying information, cash,

and    the    title       to    two    properties         from    an     elderly    gentleman

attempting to post bond for his granddaughter.                            651 F.3d at 389.

Brack pled guilty to one count of wire fraud and one count of

aggravated identity theft.                    In sentencing Brack, the district

court applied a USSG § 3B1.3 enhancement for abuse of a position

of    trust       based    upon       Brack’s      purported       position    as     a     bail

bondsman.         Id. at 390.

       Brack unsuccessfully challenged the enhancement on appeal.

On appeal, we first concluded that a bail bondsman in North

Carolina      holds       a     position      of     public      trust    leading     to     the

assumption of certain fiduciary duties to their clients.                                 Id. at

394.    Second, we concluded that Brack’s purported position as a

bail   bondsman          significantly         contributed       to    the   commission       or

concealment of her offenses because the position “provide[d] a

seemingly valid basis for her to make initial contact with [the

victim grandfather] at the jail, [and] it also allowed Brack to

                                              - 12 -
secure      [the     victim     grandfather’s]            identifying         information

without revealing her criminal intent.”                      Id. at 395.

      The    government       argues       that    the       relevant      facts     in    the

present case are on all fours with Brack in that (1) Weiss

represented        himself    throughout          the    course      of    his     unlawful

activity as being a CPA, thus providing his victims sufficient

indicia that he was trustworthy and qualified to handle their

payroll     processing,       and    (2)    Weiss’        misrepresentations              about

being a CPA created trust relationships with his clients which

allowed     him    to    manage     the    gross        payroll      of    several      large

companies virtually unchecked.

      We    uphold      the   district      court’s          2-level      enhancement       in

Weiss’ offense level pursuant to USSG § 3B1.3 for abuse of a

position of trust.            “[T]he central purpose of § 3B1.3 is to

penalize     defendants       who    take    advantage          of    a    position       that

provides them with the freedom to commit a difficult-to-detect

wrong.”      Id. at 393 (internal quotation marks and alteration

marks omitted).         Here, there is more than sufficient evidence in

the record from which a reasonable person could infer that Weiss

had   a     trust       relationship         with       at      least      one     of      his

victim-companies which provided him with the freedom to commit a

difficult-to-detect           wrong.         While        all     payroll        processing

companies are not headed up by a CPA, when a CPA does head up a

payroll      processing       company,       with        the      attendant        required

                                          - 13 -
calculations for tax withholding and payments over to the IRS

and   applicable    state     agency,        the    client    company   reasonably

believes   that    it   has      hired   a     licensed      professional   in   the

accounting/tax     field    to    ensure      the   proper     processing   of   its

payroll liabilities and responsibilities.                     Weiss only had to

take advantage of his trust relationship with one client on one

occasion in order for the enhancement to apply.                      This fact is

easily inferred from the record evidence.

      Caplinger is materially distinguishable on the basis that

the defendant in Caplinger did not have a trust relationship

with any of his investor victims.               The present case is analogous

to Brack in the sense that we can infer from the evidence in the

present case that Weiss was able to perpetrate his fraud, at

least in part, because of a trust relationship with at least one

of his victim companies.

      In sum, the district court did not err in increasing Weiss’

offense level by 2 levels pursuant to USSG § 3B1.3 for abuse of

a position of trust.


      We now turn to Weiss’ challenge to the district court’s

loss calculation under the Guidelines.                    In calculating Weiss’

offense level under the Guidelines, the district court found the

amount of pecuniary harm foreseeable to Weiss with respect to

                                     - 14 -
his     offense      conduct          and     all      relevant        conduct       to     be

$7,140,339.18.          This      amount      added    20    levels     to    Weiss’       base

offense level of 7 for a loss greater than $7,000,000.00, but

less than $20,000,000.00.                USSG § 2B1.1(b)(1)(K).               The district

court reached this figure by finding as follows:                                 (1) Weiss

failed to pay the IRS $4,132,044.16 in employment taxes that he

collected from his client companies’ payrolls; (2) Weiss failed

to pay $260,839.00 in state taxes for his client companies; (3)

Weiss       failed   to     pay       $559,663.02       in    workers’        compensation

premiums      for    his    client       companies;          (4)     Weiss    fraudulently

obtained an insurance check of $177,480.00; (5) Weiss defrauded

BB&T    of    $916,500.00;         and      (6)     Weiss     owes     $1,093,813.00        in

personal      federal      income      tax     on     his    illegal     gains      that    he

knowingly      and   intentionally           failed     to    report    on    his    federal

income tax returns.

       Below, Weiss did not take issue with the district court’s

total loss figure up to $6,046,526.18, which amount would have

added 18, as opposed to 20 levels to his base offense level of 7

for     a    loss     greater         than     $2,500,000.00,          but     less        than

$7,000,000.00.            USSG    §    2B1.1(b)(1)(J);         see     also    (J.A.       121)

(Weiss’s attorney at sentencing: “[H]e is admitting or conceding

to 18 additional levels.”).                  Weiss also did not take issue with

the    district      court’s      finding      that     he    owes     $1,093,813.00         in

personal federal income taxes on his illegal income.                            Weiss did,

                                             - 15 -
however, take issue with the district court’s inclusion of the

$1,093,813.00 amount as part of the total loss calculation with

respect to USSG § 2B1.1(b)(1).                         Weiss argued below that “the

income tax due on illegal gain cannot be included in the total

loss determination in addition to the illegal gain under [USSG]

§   2B1.1(b)(1)        without       case    authority        or    specific         guideline

authority.”         (J.A.      285).         Weiss       reasoned       that       because    the

commentary     to       USSG     §     2T1.1       (the      Guideline             specifically

pertaining to offenses involving taxation), expressly provides

for   the    counting       of   personal          income     tax       due    on    illegally

obtained    income      derived       from    a    defendant’s          underreporting         of

corporate    income      with     respect         to    a   Subchapter         C    corporation

which he solely owns, the absence of such express commentary in

USSG § 2B1.1 means that the United States Sentencing Commission

did not intend to include personal income taxes on illegally

obtained income as part of the loss calculation under USSG §


      At sentencing below, the district court overruled Weiss’

objection    to   including          the    $1,093,813.00          in    personal       federal

income tax due on his illegal gains as part of the total loss

figure under USSG § 2B1.1(b)(1) because the plain language of

USSG § 2B1.1 and its accompanying commentary allows for such

inclusion.        In    this     regard,      the       district    court          relied    upon

Application Note 3(A)(iv) to USSG § 2B1.1, which provides that,

                                            - 16 -
for purposes of determining the loss under USSG § 2B1.1(b)(1),

“‘reasonably    foreseeable     pecuniary     harm’    means    pecuniary     harm

that the defendant knew or, under the circumstances, reasonably

should have known was a potential result of the offense.”                      USSG

§   2B1.1,    comment.    (n.3(A)(iv)).       Consistent       with   the     plain

language of this commentary, the district court counted both (1)

the pecuniary harm to Weiss’ client companies resulting from

Weiss’ failure to pay the payroll taxes due on his clients’

payroll and (2) the individual federal income taxes due from

Weiss    on   such   illegally     obtained    gains       because    Count    35,

charging Weiss with corrupt interference with internal revenue

laws in violation of 26 U.S.C. § 7212(a), alleged separate overt

acts of Weiss keeping the payroll taxes for himself and then

filing   individual      federal   income    tax   forms    without    declaring

such    illegally    obtained   funds   as    personal     income.      In    this

regard, the district court specifically stated:

       The defendant committed frauds on other individuals
       and companies, and he also defrauded the government in
       the process by not paying tax on the money that he
       defrauded others out of.      Those are two separate
       losses, and it seems appropriate to calculate both as
       a part of the loss amount, particularly where he is
       charged with both. If I were not to do that, then he
       would be getting the benefit of a lower guideline
       range that does not fully incorporate the loss that
       was both intended and which occurred in this case.

(J.A. 115-16).

                                    - 17 -
        As for Weiss’ argument with regard to the commentary in

USSG § 2T1.1, the district court rejected it on the ground that

the United States Sentencing Commission added such commentary as

a clarifying amendment in response to a circuit split on the

issue of     whether      a    defendant’s      personal         income   taxes    due     on

illegally        obtained      income     should     count       in   the    total      loss

calculation under USSG § 2T1.1, which means the United States

Sentencing Commission intended all along for (1) the pecuniary

harm resulting from a defendant’s underreporting of corporate

income     with    respect     to    a   Subchapter       C    corporation    which       the

defendant solely owns and (2) the pecuniary harm resulting from

the defendant’s failure to claim as individual income the funds

he   obtained      from     underreporting         the    corporate       income     to   be

counted     as    part    of     the     pecuniary       harm     foreseeable      to     the

defendant from his offense and relevant conduct.                            The district

court    concluded       that,      if   anything,       the     clarifying      amendment

strengthened the case for counting the foreseeable loss to the

government in the form of unpaid federal income taxes resulting

from Weiss’ failure to claim his ill-gotten gains as personal

income on his federal income tax returns.

      On    appeal,      Weiss      continues   to       press    this    same    line    of

argument he pressed below.               Notably, Weiss did not cite a single

case in support of his position below and does not do so in his

                                          - 18 -
Opening Brief on appeal.             He also does not address this issue at

all in his Reply Brief on appeal.

       The    government’s        argument     in       response      essentially      tracks

the    reasoning       of     the    district           court.        Additionally,          the

government      points      out      that     the       Guidelines’         grouping    rules

support the district court’s inclusion of Weiss’ personal income

liability on his unreported illegally obtained income: “‘In the

case   of    counts     grouped      together       pursuant       to   §    3D1.2(d),       the

offense      level    applicable       to     a     Group    is     the      offense    level

corresponding         to    the      aggregated           quantity,         determined        in

accordance with Chapter Two and Parts A, B and C of Chapter

Three.’”       (government’s Br. at 47) (quoting USSG § 3D1.3(b)).

USSG   §     3D1.2(d)      applies    when        the    offense      level,    as     in    the

present case, is determined largely on the basis of the total

amount of harm or loss.

       We find Weiss’ position wholly unpersuasive.                          First, Weiss’

position ignores the plain language of the relevant Guideline

sections      and     their    corresponding             commentary,        including        the

relevant      definition       for    pecuniary          harm    in     Application         Note

3(A)(iv) to USSG § 2B1.1 and USSG § 3D1.3(b)’s direction to

aggregate the loss in the case of counts grouped together when

the offense level is determined largely on the basis of the

total amount of harm or loss.                        Second, the district court’s

reasoning in rejecting Weiss’ argument regarding USSG § 2T1.1 is

                                            - 19 -
on    the   money.       The       United      States     Sentencing    Commission’s

addition of clarifying commentary to USSG § 2T1.1 in order to

address a similar counting issue with respect to underreporting

corporate    income     in    no    way   supports      Weiss’    position    on   this

issue.       If    anything,       the    commentary       supports    the    district

court’s     inclusion     of       Weiss’      individual    federal    income      tax

liability for his ill-gotten gains on the basis that the United

States Sentencing Commission views the tax loss to the federal

government        resulting    from       a    defendant’s    failure    to     report

illegally obtained income from an underlying tax related fraud

as a separate and distinct harm from such underlying fraud.                        The

crucial point is that the underlying offense is complete when a

defendant fraudulently diverts income to himself, so that when

the same defendant fails to report such fraudulently obtained

income as income on his federal income tax return, a second and

distinct offense is committed.                 That is the way the government

charged Weiss in this case in Count 35 to which he pled guilty.

Therefore, there is no merit to Weiss’ position that he should

not    be   held     accountable         for   all   of     his   offense     conduct,

including filing individual federal income tax returns in which

he knowingly and intentionally failed to claim his illegally

gotten gains as income.

      In sum, the district court’s loss figure with respect to

determining Weiss’ offense level under the Guidelines stands.

                                          - 20 -

     In   his   last   issue   on    appeal,   Weiss    claims       the   district

court abused its discretion by failing sua sponte to appoint him

various   experts      to   assist    in    his   defense       at    sentencing.

According to Weiss, with respect to his sentencing, such failure

denied him his rights to fundamental fairness, due process of

law, and effective assistance of counsel because he did not have

expert assistance to help him in at least four ways.                        First,

Weiss claims that he needed the assistance of a tax expert to

accurately assess and challenge the $1,093,813.00 figure in the

PSR listed as the amount of personal income tax that he should

have paid on his illegally obtained income. *            According to Weiss’

appellate attorney (different from his attorney below), Weiss

“apparently felt compelled to stipulate to that amount, because

he was unable to challenge it.”               (Weiss’ Opening Br. at 18).

Second,   Weiss   contends     that    he   needed     expert    assistance     to

challenge the amount of the loss attributable to the loan fraud

allegations pertaining to BB&T.             Third, Weiss contends that he

needed an expert witness to help him prove that his companies

       According to the PSR, “[t]his amount was calculated by an
IRS agent using the defendant’s bank records, tax returns, and
paper and electronic documents seized during the May 26, 2010,
search of his residence.”     (J.A. 253).    The PSR went on to
characterize the $1,093,813.00 figure as “a conservative figure
allowing Defendant Weiss all allowable credits.” Id.

                                     - 21 -
were not, in fact, PEOs as defined under North Carolina law,

such that he could have avoided a sentencing enhancement under

USSG    §   2B1.1(b)(10)(C)           for    using     sophisticated         means     in   the

implementation          of     his    scheme.          Fourth    and        finally,    Weiss

contends that “common sense dictates that the sheer volume of

records       and    the     complex     analyses      upon     which       the    government

relied over the course of its four year investigation can only

be effectively cataloged, analyzed and challenged with expert

assistance.”         (Weiss’ Opening Br. at 22).

       As the government correctly contends, because Weiss never

requested       any     of    the     expert     assistance      he     now       claims    was

critical       to     his    ability     to    mount     a    successful          defense    at

sentencing, our review is limited to reviewing for plain error.

See Fed. R. Crim. P. 52(b); United States v. Olano, 
507 U.S. 725
, 731-32           (1993).         Under plain error review, an appellate

court has the discretion to correct a forfeited error if:                                   (1)

there    is     error;       (2)   the   error    is    plain    (i.e.,       “‘clear’      or,

equivalently,         ‘obvious,’”),          Olano,    507    U.S.     at    734;    (3)    the

error affects the defendant’s substantial rights; and (4) the

appellate court determines, after examining the particulars of

the     case,       that     the     error    seriously       affects       the     fairness,

integrity, or public reputation of judicial proceedings.                               Id. at


                                             - 22 -
      Weiss’ assignment of error regarding his need for experts

to aid in his defense at sentencing does not survive plain error

review.     Assuming arguendo that Weiss can establish error as he

has     alleged    (a     big   stretch    in   and    of   itself),      there   is

absolutely no basis for us to conclude that such error is plain.

See id. at 734 (noting that an error is plain if it is “‘clear’

or, equivalently, ‘obvious’”).              Accordingly, Weiss is entitled

to no relief with respect to his argument on appeal regarding

his need for expert assistance in preparing for his defense at

sentencing,       which    need   he   never    made   known   to   the    district



      For the foregoing reasons, we affirm Weiss’ sentence in



                                       - 23 -

Case Information

Case Name: United States v. Arthur Weiss

Court: ca4

Year: 2014-06-06

This case can be cited as precedent.